"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.
It's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.
The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text.
There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.
Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
This court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.
"reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion.
Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833
> The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant.
The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants.
If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.
I used "warrant" in the same sense that Wikipedia uses it in the context of searches. I could have been more specific and said "judicial warrant" or "court order."
> I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended.
It sounds like this recent ruling may have rendered that page out of date.
From your link:
> According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.
From the OP:
> In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
"It sounds like this recent ruling may have rendered that page out of date."
Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.
The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
Ok so why do they do it? They're many examples. This one isn't even especially good because this employee was protecting his employer's privacy rather than his own.
> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.
Although the court ruled that such searches require reasonable suspicion the court also denied any form of injunctive relieve forbidding CBP or ICE from conducting such searches in cases where there is no reasonable suspicion. Until such an injunction is given expect CBP and ICE agents to continue to perform searches based upon current agency policy.
Saying "rights are suspended" is a very nice way of putting it. Sounds more legit that way than what I call it, "the government breaking it's own laws".
What do you mean? The searches happened at US ports of entry on US soil and were conducted by agents of the US government. In many cases the victims were US citizens. It was already a clear 4th amendment violation; the court has merely affirmed that.
Don't confuse the lack of a Senate-approved director with a lack of someone in power at a government agency. There are very much people running the Department of Homeland Security.
OK, so what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"? Their actions have effectively said that for almost 20 years.
> what stops the TSA/DHS from saying "We suspect you are a terrorist; please unlock your phone"?
The same thing that stops all tyranny. A vigilant and engaged citizen body.
Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.
"The Continental Congress declared King George a tyrant who trampled the colonists' rights as Englishmen..."
If you recognize a tyranny but do nothing, you stand to receive further oppression. Consider the case of the PRC. The CCP is tyrannical toward those they rule; we plainly see this reality from our perch of liberty. However, unless the Chinese people recognize the tyrannical nature of the CCP, they'll continue receiving oppression. Making this realization harder is the PRC's surveillance apparatus and the population's indoctrination. I wish them luck.
Humans can recognize tyranny but never do anything about it. Bullying, abusive relationships, and slavery are some examples of this reality. Once you recognize the form of tyranny, you can put a name to it and act.
I don't know the exact reasons people put up with tyranny. I suspect every situation is somewhat unique. However, answering that question would allow many future harms to be prevented.
The American revolutionaries declared King George III a tyrant, but that couldn't be the end; open rebellion would mean certain harm or death. So, they acted. They made a case for taking up arms against the crown. They then resolved to become independent (found in the Lee Resolution/"Resolution of Independence"). Two days later, they declared independence. And they fought. Note, though, that the Revolution required the recognition of tyranny.
Edit: Oops. Fixed a use of "probable cause" where I meant "reasonable suspicion".
IANAL, but my rough impression from the opinion is kinda. It seems like the reasonable suspicion can emerge entirely from the interaction itself, but that it should be based facts/reasons the agent(s) can articulate.
I found the section titled "7. Reasonable Suspicion, not Probable Cause, Applies to Both Such Searches" on pages 33-38 of the actual opinion (embedded on https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...) provided good background on this.
Later on page 46 there's a more succinct statement.
The judge is evaluating one element of the relief the plaintiffs sought--that the agencies be required to expunge data copied during a search which, per the ruling, is unconstitutional. More specifically, the judge is addressing one stated reason for seeking that relief--concern that data obtained unconstitutionally will leave them forever flagged for extra scrutiny.
> "in the future, whether information has been retained from prior searches or not, agents must be able to point to specific and articulable facts for reasonable suspicion to believe that Plaintiffs’ electronic devices contain contraband, which also addresses the concern about any likelihood, greater than the general public of U.S. citizens returning to the U.S. borders, of being subject to a non-cursory search."
I agree donating to ACLU, EFF and similar orgs is our best option. Most of us do not get prosecuted unjustly, but we need to pool resources to defend those that do.
Ask them to explain what their reasonable suspicion basis for wanting to search your phone is. Without reasonable suspicion it's, by definition, an unreasonable search.
To add onto this, unreasonable doesn’t mean “unfair”. It means “backed by reason”.
Like in a jury case, reasonable doubt doesn’t mean “a small level of doubt is acceptable”. It means that “aliens made me do it” is not sufficient to counter evidence.
And if they tell you stuff it? What are you going to do.
The best approach is to know your rights, remind them of them, then let them do what they are going to do.
Bad searches get solved in court, not at the time of the search. You may get lucky and have them back down if it's clear you know they have no right to search, but I wouldn't bet on it.
“suspicionless searches” refers to searches without reasonable suspicion; absent particular evidence providing grounds for reasonable suspicion particular to the searched individual, any search would remain “suspicionless” as the term is used in 4th Amendment law; the test has both subjective (was there actual suspicion) and objective (was that suspicion reasonably grounded) elements.
This has to be the top comment in this thread. If you think about it why does anyone have to follow the law? Because there are consequences for when they don't. In this case, as my parent OP correctly states, there's legal precedent and case law on what a reasonable suspicion is. The agent should be able to go to a court, in front of a judge and be able to state what made him/her suspicious of you. If they can't, all evidence they collected during that search will be thrown out. That could basically kill the case. That'd be the motivation for the agent to at least come up with a plausible story on why they want to search you.
Hopefully you don't need to visit grandma, the onus is now on you to defend your rights. Like Ghassan and Nadia Alasaad and the nine other people who resisted similar requests from the government.
I though the "reasonable suspicion" needs to be documented and so is the search. Otherwise, this law might reduce the number of searches but not the abuse of it.
Haven't read the opinion, but I'd anticipate that this will be reversed on appeal. My guess is that this was either an Obama or Clinton judge.
Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.
Much immigration law is pure statute and dates from the 20th century. Border enforcement has varied hugely, and often included internal border and migration enforcement.
(The British Empire had almost what we would call EU-style "free movement" exactly up to the point where nonwhite people started taking advantage of it in significant numbers, with the Ugandan Asians fleeing Idi Amin in the 60s.)
Not quite. I’m saying that liberal judges tend to ignore the law when it comes to highly political issues.
For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.
I would argue that this is not really a "liberal" thing. Up until the 1970's the courts (including the Supreme Court) regularly found that the right to bear arms was in the context of establishing a militia, and not really a personal right. They consistently citied the "A well regulated Militia" part. The law was clear.
Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.
That interpretation is farcical and was rightly overturned. How can a right be held by the collective if it is not protected for the individual? Are we to believe that individual journalists may be hauled off to jail without violating the freedom of "the press"?
Collective rights are held by the States. "The people" are individuals and the prefatory militia clause is not a limit.
The Supreme Court opinion in DC v. Heller explains why that clause was included:
>The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
This is originalism as clearly supported by the numerous references to contemporary language, other writings of the authors, and comparison to other language in the Constitution. Have you read the opinion?
To interpret words, as a judge does, is inherently biased.
Just because two people disagree on an interpretation of law does not mean they are not applying that law in good faith - we all have worldviews and beliefs that naturally color our understanding of reality - which includes our understanding of laws.
We attempt to write laws clearly to avoid personal interpretation, but it's impossible to avoid all interpretation. Thus we appoint wise judges to do so for society. Even wise judges have unique worldviews.
Richard Posner from the 7th circuit said something like this: (a) decide which way one wants to rule (b) find the relevant reasoning to effect (a).
What we are told is the other way around, a fiction: Reasoning drives the decisions.
Sure, judges can't decide arbitrarily. They have a range of reasonings, a set of outcomes, along with prevailing political/intellectual/economic winds. Just pick an appropriate combination.
Common law started long after King Tut, and in any case the Constitution isn't overridden by common law where they conflict. While this particular issue has been controversial, there idea that you have no rights at the border is unsupportable either in the text of the Constitution or the case law, and you should feel cheated that you had two professors that did such an inexcusably bad job of explaining the law, if your description of their lessons is correct.
Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border? Doesn't matter if it's constitutional or not if you're in a no-constitution zone.
> Does this apply to the "special Constitution zone" that intrudes 100 miles inland from the US border?
This is specifically about border searches, so, insofar as such a zone exists (the description is hyperbolic and more useful for motivating activism that any kind of analytical application), yes.
> Doesn't matter if it's constitutional or not if you're in a no-constitution zone.
There is no such thing. There is an executive-asserted 100 mile zone (statute only says a reasonable distance, and AFAIK courts have not ruled on actual boundaries) from the border in which federal officials can conduct warrantless searches of vehicles to identify people without legal permission to be in the country.
No, you admit there is such a thing, you just call it something differently. We're clearly talking about the same thing, whatever we choose to call it, it exists.
What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]", I call a "no Constitution zone". It's clearer.
As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation, and help people understand the crazy state of people's rights at the border, or dress it up in business language like a government-sanctioned PR release and lose a listener's interest immediately.
Someone probably learned about the zone from this very thread, which wouldn't exist had I not been provocative. And is it really provocative to point out that something's not right?
> What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]”
The editorial insertion is not correct, and is the source of the problem. Neither the statute (which is ambiguous as to exact geographic extent) nor the executive interpretation asserts the inapplicability of the Constitutional protection against unreasonable searches within the zone, it authorizes an extremely narrow category of warrantless searches (the courts have consistently held that warrantless searches can be reasonable, and that statutory authorization for a sufficiently narrow and appropriate purpose is a significant factor in favor of finding a warrantless search reasonable; there is no serious debate over whether what the statute seeks to authorize is Constitutionally appropriate and within some geographic boundaries, the entire debate, after you get past the hyperbolic posturing, is over two questions: whether 100 miles is more than is reasonable, and whether the failure of the statute to explicitly say a reasonable boundary impermissibly delegates the boundary-setting to the executive.)
> As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation
It's not a good approximation of the situation, as taking it as even an approximation suggests things like your upthread misapprehension that it would be germane to a search of data on devices rather than a search of vehicles for unauthorized immigrants.
Look, I agree with what the ACLU is seeking to acheive with it's hyperbolic portrayal and even think that most uses that the ACLU makes of that portrayal are warranted for that purpose (and I think both that 100 air miles is too great a distance and the failure of Congress to set explicit boundaries makes the statute unreasonable.) But it's not even remotely a good approximation of the actual situation, except perhaps in the narrow context of discussion narrowly focussed on immigration enforcement.
Open question, here: Doesn't this backfire and make TSA more likely to operate on the basis of profiling alone? What makes a traveler suspect?
This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more comprehensive source. This leads to incidental systemic discrimination.
That said, if 'suspicionless' is tied to concrete external evidence rather than mere profiling, this should be a good move.
Unpopular opinion: why is profiling bad in context of airplane security?
If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency.
I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
I'll (possibly inaccurately) assume this is in good faith. The most obvious reason that profiling is bad, even in your inaccurate and simplistic hypothetical scenario, is that just because all airplane terrorist attacks came from people of X country, does not imply that everyone from X country commits terrorist airplane attacks. Therefore you are unfairly and immorally forcing invasive searches on many innocent people of X country. If you have any empathy for the innocent people of X country, you will realize how horrible this is.
> Therefore you are unfairly and immorally forcing invasive searches on many innocent people of X country. If you have any empathy for the innocent people of X country, you will realize how horrible this is.
Okay, we are talking about an extra 5 minutes of scrutiny, not cruel and unusual punishment. I don't think it's really that "horrible" to make people from countries with bad track records jump through some extra hoops.
To use a real example... it would be like me doing extra background checks on Chinese people applying to my company vs. Norwegian people. Not all Chinese people are spies, of course, but I've never heard of Norwegian moles infiltrating US companies and lifting IP back to the motherland being a rampant problem.
We'll have to agree to disagree about the invasiveness. In the case of the lawsuit in the original post, it's the search of all your electronic devices. I consider that to be quite invasive.
Furthermore, CBP and ICE both claimed their authority to search electronic devices at the border extended to US citizens, so much of the profiling was not just of people from certain countries, but from people whose ancestry was from certain countries.
Lastly, I can't and won't try to convince you that it's wrong to subject people of various backgrounds to different, worse treatment, whether it's "cruel and unusual" or unfair, or invasive, or even simply inconvenient. It sounds like you aren't usually subject to such treatment or else you would probably have a different outlook on it. I recommend talking or listening to some people who do, and what their experiences are like.
Israel profiles like crazy and it works well. When I was traveling through there, I got a lot more questions. It just makes sense. A lone adult males traveling versus an Israel senior citizen.
Your opinion is unpopular because it makes no sense and does not improve security. The attacker will simply recruit a "Yian" because that's your blind spot now.
I would actually argue it does improve security since you're spending more time on the people who have a higher probability of being a terrorist versus those that don't.
What doesn't improve security is just random screening where you're frisking 4-year olds and senior citizens and letting the adult males walk on by.
It takes months to years for the regulation and security to start direct profiling a specific group. It takes this group a few days to change strategy. It's not very effective to have tunnel vision.
In that case, the odds of a Yian being a terrorist would increase, thereby increasing the odds of a Yian getting searched. If we assume that the odds of being a terrorist varies based on demographics, then this would catch more terrorists than random searches.
It reminds me of the N-armed bandit problem: use random searches some small percentage of the time, and use a distribution based on prior samples to identify subsequent searches. (It's not exactly the same, but the same technique applies.)
Certainly an unpopular opinion, but perhaps the comment you're responding to means profiling in a different way?
The way I typically understand profiling is that it's done to anyone who has features (skin tone, facial hair, clothes, etc) similar to Xians regardless of those people's actual origin.
And since it's trivial to change your appearance from Xian to whatever-ian it seems pretty useless to profile in that way. Also, really annoying and alienating for those who happen to look like Xian.
>And since it's trivial to change your appearance from Xian to whatever-ian
Sorry, I don't buy this at all. It is not "trivial" to change your appearance to look like a totally different ethnic group. You seem to have a pretty fantastical idea about the state of today's plastic surgery technology. You might try to hide by shaving and wearing different clothes, but you can't hide what your face looks like or what you skin tone is.
> why is profiling bad in context of airplane security?
Why is airplane security different than other contexts?
> 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country
That's not the real world. There have been white terrorists, christian terrorists, etc. There have been muslim terrorists from most countries. Sometimes they don't look culturally muslim at a glance - maybe we should bring back Fumi-e?
> I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
As an islamic terrorist, you just gave me a fantastic idea about how to beat your security. I won't go into detail, don't want to make it too easy in case some other terror group also figures out how to look like a WASP.
> Why is airplane security different than other contexts?
Because hundreds of lives are at stake, unlike (most) other contexts like screening college applications or work visa applications.
> That's not the real world. There have been white terrorists, christian terrorists, etc.
Are you saying terrorists happen at equal frequencies across all demographics? There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.
Why would you ever stop and frisk a family? Has a terrorist attack ever been carried out by a couple with children in the history of the world? Or even just gender profiling - how many terrorist attacks are carried out by women vs. men? Men should be scrutinized much more frequently than women; it's simple statistics.
> There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists
In the USA??? I think the opposite is true. How many terrorist attacks have you had on US soil this year, and how many of the perpetrators identified as Christian vs Muslim?
Almost all of the abortion clinic bombers and shooters are self proclaimed Christians in the USA, as are most white supremacists - responsible for many attacks on synagogues in the USA including the recent Pittsburgh shooting. Also, Timothy McVeigh was targeting the large number of African Americans he saw working or in childcare at OKC federal building to try to start a "race war".
> Are you saying terrorists happen at equal frequencies across all demographics?
Are you aware that the person I replied to described a scenario where 100% of attacks came from one group, and 0% from the rest? He was just as wrong as the straw man of me that you constructed.
> There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.
I bet I know why it strikes you that way. And it's not because of actual real-world statistics based on what's actually happening in America. Check the numbers on terror attacks in the US- you might be surprised at the Muslim / Christian breakdown.
> Has a terrorist attack ever been carried out by a couple with children in the history of the world?
Yes, they have. And if we start waving couples with children through the security line, then yes, we will see it much more.
> how many terrorist attacks are carried out by women vs. men?
Yes. And if that's how we decide to bias our security, then we'll see a lot more women terrorists.
> And if that's how we decide to bias our security, then we'll see a lot more women terrorists.
There are a lot of things that terrorists could do, but don't, in spite of lots of discourse like yours suggesting it would be effective for them. Bruce Schneier held contests for such suggestions, in order to highlight security theater, but also serving to point out that it's not remotely practical to guard against all reasonable threats. Since we're limiting the threats guarded against anyway, it might be better to guard specifically against those that have been experienced, rather than strip-searching grandma ( https://nypost.com/2019/06/06/tsa-humiliated-grandma-with-st... ) out of a pretense that it could be anyone... anyone at all.
>> Why is airplane security different than other contexts?
Presumably because the margin of safety for optimal aircraft operation is a lot thinner, and there's a high likelihood that a catastrophic failure results in everyone on board (usually several hundred people) dying.
In comparison, a regular train derailing (e.g. via a bomb, or whatever) isn't going to be as disastrous.
Bruce Schneier had a series of blog posts on that subject, as part of a debate with Sam Harris. Pursuing a strategy that discounts the effects of false negatives leads to whole categories of failures in identifying risks. It's analogous to debates about medical screening - by narrowly focusing on detection, we discount the negative effects of over testing, which can lead to perverse outcomes where we hurt patients more than we help.
No, not even if that were the case. If you only check people who meet the profile your attackers will start using people who don’t fit the profile. So those percentages wouldn’t stay 100% and 0% for long.
It sounds like you don’t care about the damage done by searching innocent people. Of course, if you don’t care about that, then just search 100% of all people! Why profile at all?
So what you're proposing is that we should take the set of countries that have had an airplane terrorist and check 100% of people from those countries, and none of the others? So
because once a British man tried to light his shoes on fire to blow up a plane we should specially check 100% of the 3.8 million British citizens traveling to the US per year, but we should check 0% of those traveling on North Korean passports? Your opinion might be unpopular because it's bad.
How about more like your country gets more strikes the more airplane terrorists you've had? So Britain has 1 strike, but Saudi Arabia has probably 20+ strikes. So you are 20x more likely to be searched if you are Saudi Arabian than British.
And if you are from a country that has never had an airplane terrorist, like North Korea, why should you be screened? Maybe you should be profiled for other things, but not terrorism.
For the same reason you try to avoid machine learning models from overfitting. If you train a cats vs. dogs machine learning model but all your cat pictures are indoors and all dog pictures are outdoors, the model may inadvertently learn to recognise indoors vs. outdoors instead of learning cat vs. dog features, and will fail miserably on an image of a cat outdoors.
In your case, first of all, it's not 100%. Suppose 90% of attacks are by Xians and 10% are Yians.
Profiling Xians over Yians might mean that you catch 90% of attacks. Maybe 95% if you search some Yians.
On the other hand, learning to properly identify threats, independent of Xian vs. Yian, might allow you to catch 99.9% of attacks.
"You are of <protected class> X" does not meet the legal requirement of "reasonable suspicion", so while this (potentially) increases harassment based on profiling, it cannot meaningfully increase negative legal outcomes thereby.
> As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. [...] Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” [...] even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. [...] In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information
If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)
That's not true.
the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'.
Even if you mean 'persons', not 'people', it's still largely ambiguous.
> the right of the people to be secure in their persons, houses, papers, and effects
> other [right]s retained by the people.
> [powers] are reserved to the States respectively, or to the people.
'People' usually means 'voters':
> chosen every second Year by the People of the several States
> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
> the people fill the vacancies by election as the legislature may direct.
Government is made of 'citizens':
> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,
[etc for Senator, President]
and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:
> judicial Power shall extend to all Cases ... between Citizens and ...
> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.
> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
and makes the most interesting statement about the rights of a 'person'
> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.
You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
It depends on state/city law. In San Francisco, for example, non-citizens who have school-age kids can vote in local school board elections (as of last year).
I'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.
There was a recent court case about this (Rehaif v. U.S) where the Supreme Court made a decision about the law making it a felony to knowingly possess a gun in the US while here illegally. The prosecutor said "knowingly" just refers to the gun possession, but Rehaif's lawyer said it should refer to knowingly possessing the gun and knowing that you weren't in the country legally (Rehaif claimed that he hadn't read an email saying his student visa was revoked before he rented a gun at a shooting range). The Supreme Court said that "knowingly" referred to both the possession and the legality of one's presence. Presumably that means they're OK with a law that discriminates against some non-citizens on US soil.
Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.
No, it's federal law that includes among it's explicit exemptions possession of a valid state hunting license. The law has not been much litigated, though the Ninth Circuit upheld it earlier this year in a case that was mostly a campaign finance crimes case but also involved gun possession by the foreign, non-immigrant defendant.
> Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license).
Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.
The grant-parent said "children of _illegal_ immigrants" and the parent is talking about "children of _Green card holders_". Green card holders are those who have immigrated legally.
The question of the thread is to what extent non-citizens have particular rights. Parents cite two distinct yet substantially similar groups of non-citizens (one presumes that children don't have much agency with respect to the circumstances of their immigration). Both examples argue in the same direction on the question of the thread, so why does this distinction matter?
It doesn't require public education, but it restricts discrimination if it is provided by the state, as all states do. So, yes, it is a Constitutional issue.
No part of the Constitution entirely forbids discrimination on any basis, but the part that is held to limit state discrimination on that basis is—as limits state discrimination on every basis—the equal protection clause of the 14th Amendment.
Only because the Supreme Court decided in 5-to-4 decision that the states don't have a "substantial state interest" that would allow them to deny it. See Plyler v. Doe.
Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.
This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law. You don't want to create a patchwork of different rules in different states based on presence granted and retracted at the sole discretion of the federal government. Once you're on US soil, you're largely treated the same as anyone else on US soil (or at least through the same framework), and that makes sense. If you should be removed, that's up to the Feds. To the extent you're not, you should be treated consistently.
You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.
This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law.
This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.
are largely seen out as soon as their sentence is served
Some years ago (as I remember this) it was allowed to deport any non-citizen who had committed a crime that could lead to a year or more incarceration - is that no longer the case?
I disagree that it is true in practice, because the government can get away with claiming that not treating everyone on US soil equally is OK in the interest of public safety.
It's true in practice in a lot of places. In some places, persons without ironclad immigration status can be hassled out of enjoying public services with spitefully racist levels of bureaucratic process. It is similar to how same-sex marriages were denied after being declared legal by county clerks that refused to issue the documents that record their marriage publicly. The kids aren't denied public education, per se, but they certainly cannot get the same education experience as citizens and legal residents get. No electives. No extracurriculars. No field trips. No cafeteria payment accounts. All those things require the proper forms, and proof of residency, you see.
As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.
It's a summary of the court's opinion and reasoning (and dissenting opinion) in the https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller supreme court case, as to the constitutionality of DC's handgun restrictions at the time, in light of the second amendment. Worth a listen if you've any interest in how we regulate gun ownership, IMO.
In colonial era English language, well regulated refers to something being properly functioning, ie in working order. It has nothing to do with regulations.
A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.
The phrase "well-regulated" is an idiom that means something like "working as expected, calibrated correctly, normal, regular". You can't interpret an idiom literally based solely on the words that it's made from - idioms have their own independent meaning.
The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.
> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
> 1714: "The practice of all well-regulated courts of justice in the world."
> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.
Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):
> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:
> The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
If it really is the case that the law is written in the form of an idiom then maybe we shouldn't be taking it as gospel and let it grant people right to individually own a weapon capable of murdering numerous people. I mean, if we really are going to say that the second amendment grants such rights then it's not too much to ask that it be explicit. The fact that it's not explicit is a good basis to interpret the phrase loosely and assume that the founding fathers did not envision the gun madness of today.
I agree with you - laws should be written in as plain, simple, and timeless language as possible. Idioms are something that I'd try to avoid if I was writing laws today. However, in this instance, the operative clause of the amendment is clear:
the right of the people to keep and bear Arms shall not be infringed.
We can also understand the meaning of the amendment by examining the intentions, motivations, and beliefs of the people who wrote it -- what they were trying to achieve by doing so. There is extensive legislative history on this subject, which makes it clear that the founders believed that individual firearm ownership was an important and necessary preexisting right. The Supreme Court ruling that I've referenced goes into this history:
> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”
> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]
> Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training":
The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”
The word "regulation" is perfectly compatible with the "well-regulated" idiom.
If you look at the founders’ documents and writings on the subject, “well regulated” isn’t about “regulations,” but about the “proper functioning thereof, as the parent said. There is plenty written about the right to bear arms from that time period by those that wrote the constitution. Words do mean things and those meanings can’t be interpreted without historical context. The purpose of the 2nd Amendment is to protect against a tyrannical government — it’s illogical that the regulation by a potential tyrannical government was intended by the Constitution; it’s the fox regulating the henhouse.
How does a paramilitary organization "properly function" without regulations?
There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.
To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.
And every citizen and immigrant who intends to become a citizen man (and women in the Guard) at least 17 years of age and under 45 is a member of the Militia of the United States[1].
But for the purpose of militia in this context and therefore that of the 2nd amendment, the power of Congress over the militia is deemed "unlimited" [0]. As such, regulating it's use of arms would be well within it's remit.
... as long as such regulation does not infringe the right of the people to keep or bear arms for all the purposes envisioned by the constitutional framers.
The purposes of the framers appears to be a well regulated militia, and that militia subject to "unlimited" control by congress. I agree this would mean congress could not dismantle or subvert the purpose of the militia, but having tight controls over the weaponry at their disposal when not in a state of current or imminent battle would not seem to so undermine it. After all, even the professional military have much, much more tightly controlled access to & tracking of firearms than is imposed in civil society. It is hard to credit an argument that would say militia could not reasonably & constitutionally mirror those same controls.
That clause simply provides one important reason why "the right of the people to keep and bear Arms shall not be infringed". It's not a limitation or restriction on that right. For more an extensive deep-dive on the meaning of this amendment, see District of Columbia v. Heller, 554 U.S. 570 (2008): https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...
> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...
> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...
> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)
> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
In the 1700s, the word "regulated" meant "in good working order." It did not have the association with law that we have now. You can look into the history, but if you don't care to, consider that "regulations" (as we've described them over the past few centuries) are a form of law found in modern bureaucracies.
> For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.
AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.
While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.
I think that ruling flies in the face of the Constitution, there's no exception that I can find in "the right of the people" that says non-citizens don't qualify.
There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.
Except travelers are not "on us soil" until granted entry by customs. Customs could just deny entry if foreign travelers won't voluntarily consent to search.
The last time I so much as questioned an american customs agent about something they asked me to do, I was interrogated for 2 hours about my life, job, friends, family, phone searched, car flipped through, etc.
They even had 2 canine units circle my car and jump in and out of it at least 10 times each.
Some people get off on power, and this job is as close to having power over people as some can get.
As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.
I travel across the US Canada land border from time to time (in the mountain west). My experience has been that Canadian officials are universally civil and respectful while US officials are universally not.
As a frequent traveler between the US and Canada, I’ve only ever got grief (including accusations of smuggling) from Canadian officials. Going to the Us side it’s usually a simple “have a nice day”.
It depends on the entry point. If I go through US customs in the Toronto airport, it's on Canadian soil. If someone there is having an issue with the process, they can withdraw their entry request and leave. That's perfectly fine and they shouldn't be punished for it. You don't have that option if you use a land crossing as you're physically inside the US.
I recommend caution when asking the agents at Shannon if the Republic of Ireland still has sovereignty from the United States of America. In my experience, it hits a nerve.
Many US airports, especially away from the coasts, don't have any immigration/customs facilities, instead flights from Canada to the US go thru US customs in Canada (make sure you get to that flight early) since it's cheaper to put US facilities in a relatively smaller number of Canadian Airports
The Bahamas also has US customs there. You do the immigration part before boarding your plane. And you land on the US on a domestic terminal and don’t go over customs.
But customers officers can't force you to comply can they? So whether or not they have any authority is irrelevant. Of course if you choose not comply you have to turn around.
Sure... but I don't know where US citizens will go if they do not have residence in another country. Not everyone getting searched reside outside the US.
In that case you as a citizen are allowed to enter, but whatever they're searching (phone, computer, etc) may be detained and you'll be given a receipt and (often) an opportunity to claim it at a later date.
and constitutionally speaking, permanent exile isn't considered a punishment for noncitizens, so SCOTUS can rule whatever they want is unconstitutional, it still means they're gonna do it
Even if that's true, that simply means the search moves a few feet to US soil, where they stand on one side of the border and you stand on the other. And they don't have to let you in if you're not a US citizen or lawful resident.
No, if you're a citizen or lawful resident they have to let you in...eventually. Courts have ruled that they can hold you at the border for a few hours.
That's completely untrue, as much as it would make sense for it to be. In fact, constitutional rights have not been applied universally to noncitizens by courts. Everything from the First Amendment onward has been limited by case law as it applies to non-US persons.
Your reasoning may be correct, but not quite so obvious to courts. For instance, foreigners' right to keep and bare arms is routinely violated, even though they are people.
> Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.
> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.
What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.
> What is the point of a theoretical right that can't be exercised in practice?
It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.
The First Amendment does not have the same restrictions as the Second Amendment.
To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).
Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.
Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border.
In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.
CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
Yeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.
Eh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.
> In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws
Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.
Of course not, but there is a degree of proportionality here. In theory a person's personal diary, letters, chequebook etc could contain evidence of crimes. However it's generally not been considered appropriate to read through them during a customs search.
The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.
Evidence of the four horsemen[1]. Child porn, terrorism, drugs, and the all-encompassing "organized crime" — which can include money laundering, which in turn can mean having enough money the government wants to steal it.
Your examples of searching cargo aren't comparable though. The closest analog version to phone or computer searches would probably be searching an individual's private papers, personal journal, and list of contacts.
Are you sure? The GP post seemed to be using the comparison to explain why these types of searches are in fact in line with historic border & import practices because those historic practices could include a search of cargo, luggage, etc. It certainly appeared that post was attempting a direct comparison.
You rightfully argue that lowering protection boundaries was necessary to uphold the law. The same logic can be applied in reverse though - there is no practical need to smuggle data into the country on a physical device nowadays, so why search devices?
Looking at how a law has been implemented in the past is a basic legal principle. The reason for it is to provide context as to the intent and proper way to interpret a law, in order to ensure continuity and consistency in it's application. The idea is that, all other factors being equal, continuity and consistency are desirable.
Though it is also a basic legal principal to determine if the circumstances that gave rise to a law are still in effect, and if not the law may be rendered moot. So much so that laws that haven't been enforced for an extended period of time can be challenged & overturned on exactly that basis if someone suddenly finds themselves on the wrong side of such a law. I'm just making that distinction though; In this particular case, there is still a continued interest in controlling what enters & leaves the country. The specific issue with this court case revolves around whether personal electronics are truly comparable to items that have traditionally been subject to searches. The court says no, they are not comparable, which seems to make sense: Such devices are less like cargo or luggage and more like personal papers, journal, etc.
No, I read that, but the author presented a viewpoint from the historic example of luggage, cargo, etc. searches and then simply stated the courts disagreed. Expanding on that to talk about why those things are in fact different and not comparable is a salient point, and not something that a reader of the GP comment would necessarily come away with otherwise.
Because the reasons are fairly obvious to everyone here. Smartphones are basically an extension of our brains. They are our eyes, ears, mouths, and memories. Searching a smartphone (and usually copying its contents) is an invasion of privacy far beyond flipping though a ship log or traveler's diary, so that precedent isn't good enough to establish reasonableness.
On the one hand, it's extra bad because searching a journalist leads to an additional violation: freedom on the press.
On th other hand, we should not think of 1A rights as rights that only specialists or professionals need.
(Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)
Except that we can all journalists really. There's no professional mandate. Go to rallies and make videos and post them on your political blog? You should be considered a journalist.
They'd like us to believe that. That's why they appropriated the term "the press" for themselves when it originally referred to a machine that was used to print. When 1A mentions "freedom... of the press", it's as one of a group of rights that apply to all people, not a group of different parties that have rights. That is, 1A protects everyone's freedom to operate a printing press, or use some other means of publishing and distribution that might have been invented since then.
I’d like to learn more about your interpretation of what “the press” is referring to; it strikes me as interesting that “operating a printing press” would be the explicitly enumerated right in such a (mostly) broad text, but then I am aware of the cultural differences over that many years means it’s not out of the realm of possibility. Do you have any articles or books I could read about this?
The point is the government can't arbitrarily take away your medium of communication you legally own and use. Barring random specific issues (such as noise ordinances), if you own a megaphone (metaphorical or not) you can use it to spread your speech. If people could only exercise free speech by whispering quietly to themselves then it may as well not exist. You could start by reading wikipedia about freedom of the press.
That, I already understand. What I'm asking about is the narrower definition of "the press" in that historical context, because the usage nowadays is much broader.
Back then, the "press" was the only method of communication other than actually talking to people. But the point was that the government couldn't infringe a method of communication.
EDIT: Note, for example, that the Federalist Papers that drove much of the discussion behind the policies in the Constitution were self-printed by Franklin, et al. Newspapers at that time were highly political and opinionated, like Fox News today, and did very little actual reporting of news. Journalists and "the press" didn't get conflated until much later.
It's a lot more disturbing if other parts of the government can arbitrarily target people they don't like for harassment. There's a big difference between 10 random searches and 10 targeted searches. Journalists aren't that common. If there's a large cluster of journalists getting targeted in a close period of time, it's worth figuring out why that's happening.
The freedom of press in the 1st amendment refers to the printing press and the owners of those presses didn't want to be restricted on what they could print or be forced to print things they disagreed with.
It was not, in any way, intended to refer to "journalists", a group whose only defining characteristic appears to be employment by a certain group of private companies.
That's an interesting question. It's not restricted to only citizens (so applies to immigrants, etc.) but may not extend as travelers who are passing through or has no real connection to the country. Ref: US vs. Verdugo-Urquidez
That's a silly (mis)characterization of what this is. Some rights are only afforded to the citizenry, and that is not inherently evil and is often the only reasonable approach. Other rights are afforded to everyone. The discussion centers around teasing out what the Constitution means when it uses person/people.
Not everyone gets the same rights. That's why we have the word "citizen", and why citizens get different legal status. One of those rights is the right to vote. Are you saying you think anyone should be able to vote in the elections of whatever country they want? That seems pretty silly.
No, I don’t think everyone ought to have the right to enter my house at night time either, but my point does not collapse to such absurd suggestions. I was, of course, referring to the phrase “the people” in the text of the fourth amendment. I hope I don’t sound too silly suggesting that the right to not have property searched and seized unreasonably is not something that ought to depend on which country you were born or have gained citizenship in.
I do agree, but that's not what you wrote before. You wrote that "all humans should have the same protections against their rights being violated", which implies you think everyone should have the same rights. This clearly doesn't make sense, as I pointed out about voting rights. The bottom line is, not everyone has the same rights. Citizens of any country have more rights than non-citizens; there's nothing abnormal about this. You can argue that certain rights should extend to everyone (and I would agree), but this argument seems to have some disagreement about whether unreasonable-search-and-seizure is a right that should only be afforded to citizens or not, and I'm just pointing out that non-citizens don't get all the same rights as citizens.
Good news: none of the Bill of Rights are limited to citizens, and most are indeed broadly worded so that citizenship status is not a threshold requirement for the right to apply.
> I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.
Don't different countries have different views of rights? What happens when those rights are at odds? For example, Turkish people can't speak ill against their governments [0]. This contrasts with countries that have fewer restrictions on speech, like America.
So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
Or is "protections" here more about procedural rights?
I’m sure the people didn’t get together in a referendum and decide to be not-allowed to criticize the government. That’s not a matter of not agreeing, it’s a matter of being told
And in between tyranny and the right of free speech (which not even all modern countries agree on I would add) there's a whole lot of gray. For example, is healthcare a right? How about voting for felons?
> Don't different countries have different views of rights?
And so they would apply their views in their own jurisdiction.
> What happens when those rights are at odds?
Whichever jurisdiction you stand in correspond to the rights that prevail for you.
The way I see it, a country says what the rights of people/humans are, and they defend those beliefs in their own jurisdiction, where they have the absolute power to.
> So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.
> I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.
Ah I had not thought of it in this way but that makes sense. I can't disagree that all people in a single jurisdiction should be afforded the same procedural rights (I couch it in procedural rights because substantive rights are stripped from felons for example in many jurisdictions).
Depends on what you consider a "right" to begin with, which brings us full circle. I think some things are easy and most reasonable people will agree on (like here) but there are many which aren't so clear cut.
It's unfortunate that this is a reasonable question. I've been surprised to learn how conditional being treated like a human being really is (location, citizenship, etc.). It would be my preference for my country to treat all people kindly, fairly, equally.
I would argue that any individual deserves most or all rights outlined in the Bill of Rights, regardless of citizenship or geographic location. These are fundamental human rights. I'm aware this is not how the constitution is written, it's just my opinion.
International travelers entering the US (who were subjected to the policy) are not all foreigners.
> part of "the people"?
Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)
As an American I'm very confused why clear constitutional violations don't warrant any repercussions on the perpetrating individuals.
So I work for a company that deals with medical data, if I violate HIPAA, I don't get to just keep doing it until a federal court says stop and then walk away as if nothing happened. I'm personally held responsible for those violations. Not just my company, me.
Why aren't each of these agents that obviously and egregiously violated the constitution subject to imprisonment or fines for each violation?
The Constitution does not specify punishments for violating it. Congress could pass legislation specifying punishments in accordance with this ruling, but it would not be retroactive.
The level that the bill of rights applies to non-residents isn't very clear. The fourth amendment specifies the right of "the people", but it doesn't expand on who this includes. Some interpretations have it as us residents, some have it as all people.
I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision.
Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.
The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?
The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means.
IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.
Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.
No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it.
Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).
Not a lawyer nor intimately familiar with the subject, so until someone more knowledgeable chimes in and at risk of making a fool of myself:
I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.
That's mostly correct, but it gets even more contextual: if you confess right when you greet the police, your confession is admissible.
However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.
You do have to be Mirandized if the prosecution expects to use that confession--or any evidence derived from that confession (under the fruit of the poisonous tree doctrine)-in court.
For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.
I used to be a public defender before I went into corporate and tax practice. Out of roughly 100,000 cases that went through the local PD office while I was there, fewer than 10 involved parallel construction.
Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.
It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.
It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.
Those are the cases where the parallel construction was caught, right? What about all the cases where parallel construction was used and successfully kept secret?
That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you.
But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.
And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.
> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.
That was a rather different problem than directly harassing the unlawfully searched person.
In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.
And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.
That's not how being a plaintiff works, which is what is frustrating about this type of situation.
They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.
> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court.
This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.
For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.
That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.
> surely I can’t impede law enforcement because they haven’t justified their authority to me
Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.
You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.
>Unless you've broken the law (and certain special cases), they have no authority over you.
This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.
The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion.
> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]
No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.
>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?
Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.
In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.
>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.
A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.
> the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment
So, does this not apply to people flying domestically?
I don't have a source at the ready, but my understanding is that the existing law and/or case law determined that traveling domestically entitled one to such protection. Various federal agencies have determined via rule making that such protections do not extend to international ports of entry/airports for reasons of national security. Those determinations are what have been struck down in this case.
No. TSA doesn't search smartphones and laptops, and the searches they do apply to everybody. When you search everybody equally, courts have ruled it's not a 4th amendment violation. See drunk driving checkpoints.
Yeah, too bad the border control agents basically do what they want and this case means nothing.
They'll do the same thing, and someone will say "But what about Alasaad v. McAleenan?" and in the small windowless holding room the agent will say "What about it? You want to leave, unlock your phone."
If a border agent is giving me shit, the last thing I'm worried about is whether or not any evidence they gather is going to be used against me in court.
99.9% of the time, the most negative outcome of this kind of interaction will be losing my stuff, being arrested and held for anywhere up to 24 hours, or being denied entry. For most people, these are a compelling enough reasons to comply with a power-tripping border agent. Despite this ruling, your recourse in such a situation will remain quite limited.
The metric the agent's boss's boss's boss cares about is convictions because that's how they justify their budget "look at all these criminals we're catching". If they can't use the illegal searches in order to convict people of crimes they're much less likely to spend the man hours doing them as routine procedure.
Also, it's not exactly hard for a lawyer to argue that you were coerced into consenting to a search in your hypothetical example. Since the people crossing the border are mostly non-criminals if CPB does use those tactics routinely it will not take long at all for a suitably politically sympathetic victim to come along and precedent to be established saying that is also not ok.
Alas, a metric they just don’t care about is passenger feelings. The power tripping is real, and most people would consider being detained for hours to be a big issue, even if it never even goes to court.
> If they can't use the illegal searches in order to convict people of crimes
I highly doubt they are getting a lot of convictions from illegal searches of devices. The overwhelming majority of convictions they get are from people physically smuggling drugs and weapons and apples across borders. They don't need to unlock your phone to catch you with any of these things. They already have the right to tear apart your car if they think you have drugs hidden in it.
It's a power play, not an actually useful LE tool. The overwhelming majority of the things that you may have on your phone that are going to get you in trouble with border control are not going to put you in jail. What they will do, is deny you entry, and possibly ban you for 5-10 years.
Since entry for non-citzens is a courtesy, you have zero redress in that case. You're never going to get your day in court, since you're not charged with a crime, and you will not be able to contest that the search was illegal.
The only way this ruling would result in any change, is if CBP voluntarily follows it.
They can still do parallel construction, and can still cause you harm just by detaining you, and they can use your behavior in response to abuse as probable cause to justify further abuse.
If you were illegally searched, then law enforcement subsequently does parallel construction, defense counsel can easily and persuasively argue that the subsequent evidence is "fruit of the poisoned tree" and would not have occurred without the illegal search. The judge can then throw out all evidence from the parallel construction.
The only way parallel construction works is if defense counsel and the judge don't know that the illegal search ever happened at all - which is very unlikely in the case of an illegal border search.
Yes, but the whole point of the attorney is to make sure that the correct laws are applied to you. This ensures that it's the country that's determining who is admissible rather than just a petty tyrant who got out on the wrong side of the bed.
I've been seeing this fallacy a lot lately in these times. If you're ever in this situation: the longer you're held without a lawyer, the higher the liability on your captor becomes. Period. This is where million dollar lawsuits by the ACLU and jail time for corruption begins.
The US was founded on habeas corpus, and it doesn't matter what laws have been written since, or what national threats have been used as an excuse to undermine our inalienable rights. Your duty is to the future people of the US so that their rights to life, liberty and the pursuit of happiness aren't infringed.
My feeling is that this house of cards of government officials skirting the law and pleading ignorance is going to come crashing down in the near future. They know that they are breaking the law. They're just assuming that you will be afraid and let them.
I had hoped that we were past all this and the 21st century would to be free of injustice, but unfortunately we're all going to have to fight just like our ancestors did. But I think that better times really are just around the corner, as long as we stay informed and unified.
Related: congresswoman Nanette Barragan questions Kirstjen Nielsen on asylum seekers being turned away at US border crossings:
There is no constitutional right for people outside of the US to seek asylum in the US.
Asylum seekers are granted refugee status by the United Nations if they meet two broad requirements. The US accepts a limited number each year (notably more than any other country since WW2, however).
Personally, I think that the American Dream was always an ideal to live up to, not something established that only exists in the US. If we deny someone's dignity and rights simply because they aren't a US citizen, then we've embraced injustice and broken our pledge of liberty and justice for all.
An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge.
So I think that the "Nanette Barragan questions Kirstjen Nielsen" video I linked shows that the border crossing agent committed a crime when she turned away people seeking asylum. She should have either: a) granted their asylum or b) admitted them to go before an immigration judge.
From there, the border crossing agent should be tried in court for her actions. In which case, she can either say that she is guilty and take the penalty, or that she was following orders and then the next person up in rank should go through the process until it reaches Department of Homeland Security Secretary Kirstjen Nielsen. In which case, she can accept responsibility, or claim that she was following orders from the president.
It looks like Kirstjen Nielsen resigned on April 10, 2019, a month after the March 2 video:
We're seeing this a lot lately, where high-ranking officials are skirting the law, then resigning to shield the president. That's not how it should work in America.
I say all of this because I imagine if I was a border crossing agent, and I denied asylum to someone outright, then found out later they died because of my actions, I'd likely get PTSD and never recover. At the very least, I don't know how I'd be able to sleep at night.
Which is why I think I'm right as far as the spirit of the law, even if the letter of the law doesn't match up with what I'm saying.
> I've been seeing this fallacy a lot lately in these times. If you're ever in this situation: the longer you're held without a lawyer, the higher the liability on your captor becomes. Period. This is where million dollar lawsuits by the ACLU and jail time for corruption begins.
This itself is actually the fallacy. Take a look at this:
> Watson was correct all along: He was a U.S. citizen. After he was released, he filed a complaint. Last year, a district judge in New York awarded him $82,500 in damages, citing "regrettable failures of the government."
> On Monday, an appeals court ruled that Watson, now 32, is not eligible for any of that money — because while his case is "disturbing," the statute of limitations actually expired while he was still in ICE custody without a lawyer.
This is astounding. It seems that there is actually an incentive to keep a person claiming to be a citizen imprisoned, since if they keep them imprisoned long enough, then any financial debt owed for the injustice will magically disappear thanks to statute of limitation.
"Flessner, Watson's lawyer, says the ruling "turns false imprisonment statute of limitation claims kind of on their head."
It means a person in custody for an extended period of time would have to file a false-imprisonment claim while detained, "before it's been determined that they've been falsely imprisoned," he said. "I mean, this is not only applicable to immigration cases ... there's lots of citizens that are falsely or wrongly imprisoned."
Thank you devicetray0, I hadn't heard of that case, I agree with tropdrop that that is _astounding_.
A few thoughts comes to mind:
* Corrupt public officials are hacking our legal system through thin cracks like differences between citizen and non-citizen rights and the statute of limitations to commit injustice.
* This case needs to be appealed and go all the way to the Supreme Court, because it's pretty self-evidently an infringement of Davino Watson's rights.
* The Supreme Court as it stands now would likely make an unjust decision in that case, because it has been packed with judges that lean more towards libertarianism/corporatism than justice. Mitch McConnell blocked Obama's nomination of Merrick Garland, which opened the door to Neil Gorsuch and Brett Kavanaugh: https://www.vanityfair.com/news/2019/05/mitch-mcconnell-supr...
> An immigration officer at Boston Logan Airport reportedly searched an incoming Harvard freshman’s cell phone and laptop, reprimanded the student for friends’ social media postings expressing views critical of the U.S. government, and denied the student entry into the country following the search.
They let the border pigs keep all of the illegally and coercively stolen private information from the thousands or millions of phones they've already imaged (under the basis of "it was believed to be legal at the time"), so not really.
Third-party doctrine lets them silently access your emails and IMs and texts at rest, and Section 702 as well as creative definitions of "access" let them sniff them all in transit. Privacy from the fed snoops is 100% an illusion; the entire population is under continuous realtime monitoring.
This border search thing is an important but ultimately minor victory; total surveillance is the name of the game in the United States now, and likely will remain so until the country no longer exists.
Strong encryption is the only defense we have against mass surveillance, but sadly most people don't care enough about their own privacy (much less that of others - the classic "What do you have to hide?") to demand it in communications products and services, so the majority of personal networked communications happens in ways that are extremely simple for the corrupt federal government to collect, analyze, and permanently store.
I think you are preaching to the choir a bit, given the HN audience. I suspect that the continuous realtime monitoring that is done by private corporations is as bad or worse. Maybe you don't win the war all at once but one battle at a time.
> A border officer searched plaintiff Zainab Merchant’s phone, despite her informing the officer that it contained privileged attorney-client communications.
(The following (what I say) does not mean to imply that I don't agree with the ruling:)
I don't get why this is a factor at all or even relevant. In particular the 'despite her informing the officer'. Why would the officer be in a position to determine a) If the plaintiff is even an attorney to begin with b) If the plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to only make a comparison) in order to prevent the phone from being searched because it might in fact contain contraband? Very convenient, right? Why in particular would the lawyers rights (because they are an attorney) be greater than any ordinary individual? Further why would it matter if an officer saw the attorney client information to begin with? The assumption is that anything they (the officer) sees would have to be kept private no matter what it was. Lastly could someone (a business person) then assert that there was material non public information on the phone and that as a reason to not search it? The point is if they did see it the officer could (in theory) trade on that information. Where does this stop?
Think I'll give it a miss for now though. The entire border crew seems like a law onto themselves.
e.g. last time - got hassled about being a dual citizen (neither US). But then while standing in a queue for a metal detector (as per agent instructions) another agent pulls me out of the queue and says I don't need to do this go around there. Rest of epic long queue proceeds towards detector/search as if nothing happened...just me.
Very much doubt there is any rhyme or reason behind what's happening at the borders beyond massive power trips.
I'm not sure what effect this judgement even has. The court declared that the search policy was unconstitutional but denied the request for an injunction, so I think right now there's nothing preventing the ICE from continuing to search devices even in that district?
Only in the same federal district that issued the ruling. And even then its not binding. A different judge in the same district could come to a different conclusion.
It is not necessarily the final say. DHS may turn around and challenge the ruling which may then be picked up by the Court of Appeals for further review. However, the Court of Appeals does not have to review the case and even if they did, they very well may agree with the ruling from the district court.
As with virtually all govt authority figures whose 'authoritah' gets constrained by pesky constitutional 'noise', they will adopt the minimal appearance of compliance that their dept lawyers estimate they can get away with. I wish I was kidding.
It's definitely a good ruling to have on the books but it could very well just end up being a checkbox matter to have a pretense of "suspicion" (ie "this person appeared nervous").
Depending on the jurisdiction of this district court the DHS might even decide that it doesn't apply outside that jurisdiction until a higher court rules on it.
Well, I'll be more tempted to fly into logan, at least for now…
But yeah, all hangs on what is "suspicion" (or what passes for it in practice), compared to say a targeted op or warrant provided by a court (even if its one of those secret courts like FISA).
IANAL, but AFAIK attorneys can (and often do) cite a different court's ruling as support for their argument but if the cited court is not above the current court and in the same 'branch' of the tree, the current court isn't bound by it.
That's why supreme court rulings are such a big deal. They are the ultimate 'root' authority.
Please keep nationalistic flamebait off HN. Also, could you please stop posting unsubstantive comments? You've done it repeatedly lately and it's not what this site is for.
I support this ruling very strongly, and am super-glad it went the way it did.
But at the same time, if it were as obvious as just quoting the constituion, it wouldn't have made it to the Supreme Court in the first place. The SC decides cases that are difficult, not cases that are easy.
Again, I believe this is the right decision, but it was no layup.
There are many obvious cases that have made it to the Supreme Court. All it takes is a pig headed state or federal attorney general who insists on trying to uphold oppressive laws.
Just like how FISA courts have granted NSA access to whatever they want because “the person will never find out their privacy was violated, therefore it’s not that big of a deal”.
This is what the Yahoo attorneys were told in one of the few partially declassified FISA court hearings by the judge when they tried to push back on a sweeping warrant, which I believe involved full emails/information for not only a group of individuals but every person they talked to 2 hops, which quickly turns into thousands of people and companies.
Not exactly correct, the Supreme Court still has to accept the appeal onto its docket. Many of times, the Supreme Court will disregard the case and leave it to the lower courts to hash out.
Your argument is poorly formed this was an extremely obvious case of reading the plain language of the law as already quoted. Which court it arrived in isn't proof positive of the complexity of the law. Its proof of how irrational and diseased our system of government is.
Perhaps you would like to advance an actual argument insofar as abusing access to portable computing devices to virtually riffle through an individuals entire life without benefit of court or even articulable suspicion? This is an intrusion into an individuals privacy worse than anything the framers could have imagined justified only a by a right to search that exists to discover contraband THINGS not contraband thoughts.
Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.
>Your argument is poorly formed this was an extremely obvious case of reading the plain language of the law as already quoted.
It's not at all obvious. For example: it's "obvious" that the constitution applies to the United States. Before you pass through the border, you are in a place that is NOT the United States. It's definitely not obvious that the constitution applies to places outside the US.
> Perhaps you would like to advance an actual argument
> insofar as abusing access to portable computing devices
> to virtually riffle through an individuals entire life
> without benefit of court or even articulable suspicion?
You seem to think that I support a side I don't. Cases like this don't survive motions for summary judgement if the one side is completely implausible. This case either survived a motion for summary judgement, or the "obvious" side didn't make such a motion.
So if you think it is completely obvious, you should take it up with either the judge that denied the motion, or the lawyer who neglected to bring it.
> Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.
Any law that forbid it was unjust, and it should have been fixed long, long before Obergefell. But just because a law is unjust, doesn't mean that it is unconstitutional on its face, (cf, civil asset forfeiture--manifestly unjust and currently legal in many circumstances) This is a mistake many court-watchers make.
It is a very safe bet that a 1950's court would have gone the other way on Obergefell, so on a plain language standard kind of fails. At some point, society gained a better understanding of what justice is and is not--and that is a great thing. But if the plain language didn't change, then the appeal to plain language isn't what gets us there. Rather, our understanding of justice did.
It is "obvious" only if you ignore centuries of customs practice and the word "reasonable" in the text. The 4th amendment protection from searches is not absolute.
Searching a digital device and further remote databases it has access to is more akin to going to the persons home and riffling through all their papers and interrogating their friends and family than it is to a traditional customs search.
It's reasonable to search for harmful or illegal materials entering the country. You have a compelling interest in the safety of the citizens and this is likely your one chance to reasonably interdict them before they can cause harm to the citizenry.
No such special circumstance exist for information. Information flows freely and securely over most of the world and interdicting it at the border is laughable. Once you leave behind existing powers and arguments for same you are left making an argument for new powers undreamt of by the founders.
You can argue for example that being able to access all the private words and documents of travelers allows you to make better decisions as far as whom and what ought to be interdicted or examined. This might even be a compelling argument for you. It is however not a continuation of centuries of practice but rather entirely new power that ought to be enumerated in new laws if it is to be granted.
If we insist that we react to the changing landscape provided by technology solely by interpreting what 18th century individuals wrote we ought to interpret very conservatively insofar as grants of government power. If such new powers are needed let the peoples representatives write the required laws.
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[ 3.4 ms ] story [ 336 ms ] threadSounds like the Court got it right.
https://www.aclu.org/other/constitution-100-mile-border-zone
There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.
Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.
I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.
Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833
The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants.
If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.
https://en.m.wikipedia.org/wiki/Search_warrant
It sounds like this recent ruling may have rendered that page out of date.
From your link:
> According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.
From the OP:
> In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.
Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.
The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.
https://www.cnbc.com/2019/04/03/apple-employee-files-complai...
> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.
In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.
The same thing that stops all tyranny. A vigilant and engaged citizen body.
Practically, this means donating to the ACLU and related groups. It also means, if you’re party to injustice, suing or reaching out to organisation who can help you sue to assert our rights.
Because I'm interested, what would be the top three situations where that happened that come to your mind?
A tyranny must be recognized. See: https://en.wikipedia.org/wiki/American_Revolution
"The Continental Congress declared King George a tyrant who trampled the colonists' rights as Englishmen..."
If you recognize a tyranny but do nothing, you stand to receive further oppression. Consider the case of the PRC. The CCP is tyrannical toward those they rule; we plainly see this reality from our perch of liberty. However, unless the Chinese people recognize the tyrannical nature of the CCP, they'll continue receiving oppression. Making this realization harder is the PRC's surveillance apparatus and the population's indoctrination. I wish them luck.
And because they suppressed (non voting, poor) people in the UK didn't declare their king a tyrant it wasn't one for them.
I don't know the exact reasons people put up with tyranny. I suspect every situation is somewhat unique. However, answering that question would allow many future harms to be prevented.
The American revolutionaries declared King George III a tyrant, but that couldn't be the end; open rebellion would mean certain harm or death. So, they acted. They made a case for taking up arms against the crown. They then resolved to become independent (found in the Lee Resolution/"Resolution of Independence"). Two days later, they declared independence. And they fought. Note, though, that the Revolution required the recognition of tyranny.
IANAL, but my rough impression from the opinion is kinda. It seems like the reasonable suspicion can emerge entirely from the interaction itself, but that it should be based facts/reasons the agent(s) can articulate.
I found the section titled "7. Reasonable Suspicion, not Probable Cause, Applies to Both Such Searches" on pages 33-38 of the actual opinion (embedded on https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...) provided good background on this.
The judge is evaluating one element of the relief the plaintiffs sought--that the agencies be required to expunge data copied during a search which, per the ruling, is unconstitutional. More specifically, the judge is addressing one stated reason for seeking that relief--concern that data obtained unconstitutionally will leave them forever flagged for extra scrutiny.
> "in the future, whether information has been retained from prior searches or not, agents must be able to point to specific and articulable facts for reasonable suspicion to believe that Plaintiffs’ electronic devices contain contraband, which also addresses the concern about any likelihood, greater than the general public of U.S. citizens returning to the U.S. borders, of being subject to a non-cursory search."
I agree donating to ACLU, EFF and similar orgs is our best option. Most of us do not get prosecuted unjustly, but we need to pool resources to defend those that do.
Like in a jury case, reasonable doubt doesn’t mean “a small level of doubt is acceptable”. It means that “aliens made me do it” is not sufficient to counter evidence.
The best approach is to know your rights, remind them of them, then let them do what they are going to do.
Bad searches get solved in court, not at the time of the search. You may get lucky and have them back down if it's clear you know they have no right to search, but I wouldn't bet on it.
Both my Crim Pro and Con Law professors skipped border search cases and summed them up with "you have no rights at the border." That's been the common law since King Tut.
Much immigration law is pure statute and dates from the 20th century. Border enforcement has varied hugely, and often included internal border and migration enforcement.
(The British Empire had almost what we would call EU-style "free movement" exactly up to the point where nonwhite people started taking advantage of it in significant numbers, with the Ugandan Asians fleeing Idi Amin in the 60s.)
But you should realize you are basically saying Judges are not impartial arbiters, but rather biased based on who appointed them.
For example, how many opinions have you read from Ginsburg where she says “I personally disagree with this outcome, but the law is clear.”? Quite rarely.
Nowadays Supreme Court president effectively ignores the militia part, and has created a personal right mostly out of whole cloth. So 200 years of president out the window, mostly for a political issue.
Collective rights are held by the States. "The people" are individuals and the prefatory militia clause is not a limit.
>The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...
Just because two people disagree on an interpretation of law does not mean they are not applying that law in good faith - we all have worldviews and beliefs that naturally color our understanding of reality - which includes our understanding of laws.
We attempt to write laws clearly to avoid personal interpretation, but it's impossible to avoid all interpretation. Thus we appoint wise judges to do so for society. Even wise judges have unique worldviews.
What we are told is the other way around, a fiction: Reasoning drives the decisions.
Sure, judges can't decide arbitrarily. They have a range of reasonings, a set of outcomes, along with prevailing political/intellectual/economic winds. Just pick an appropriate combination.
Common law started long after King Tut, and in any case the Constitution isn't overridden by common law where they conflict. While this particular issue has been controversial, there idea that you have no rights at the border is unsupportable either in the text of the Constitution or the case law, and you should feel cheated that you had two professors that did such an inexcusably bad job of explaining the law, if your description of their lessons is correct.
This is specifically about border searches, so, insofar as such a zone exists (the description is hyperbolic and more useful for motivating activism that any kind of analytical application), yes.
> Doesn't matter if it's constitutional or not if you're in a no-constitution zone.
There is no such thing. There is an executive-asserted 100 mile zone (statute only says a reasonable distance, and AFAIK courts have not ruled on actual boundaries) from the border in which federal officials can conduct warrantless searches of vehicles to identify people without legal permission to be in the country.
No, you admit there is such a thing, you just call it something differently. We're clearly talking about the same thing, whatever we choose to call it, it exists.
What you call "executive asserted zone in which [the constitutional protection against unreasonable searches and seizures does not apply]", I call a "no Constitution zone". It's clearer.
As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation, and help people understand the crazy state of people's rights at the border, or dress it up in business language like a government-sanctioned PR release and lose a listener's interest immediately.
Someone probably learned about the zone from this very thread, which wouldn't exist had I not been provocative. And is it really provocative to point out that something's not right?
The editorial insertion is not correct, and is the source of the problem. Neither the statute (which is ambiguous as to exact geographic extent) nor the executive interpretation asserts the inapplicability of the Constitutional protection against unreasonable searches within the zone, it authorizes an extremely narrow category of warrantless searches (the courts have consistently held that warrantless searches can be reasonable, and that statutory authorization for a sufficiently narrow and appropriate purpose is a significant factor in favor of finding a warrantless search reasonable; there is no serious debate over whether what the statute seeks to authorize is Constitutionally appropriate and within some geographic boundaries, the entire debate, after you get past the hyperbolic posturing, is over two questions: whether 100 miles is more than is reasonable, and whether the failure of the statute to explicitly say a reasonable boundary impermissibly delegates the boundary-setting to the executive.)
> As far as activism goes, the way I see it: we can either use plain language to convey a pretty good approximation of the situation
It's not a good approximation of the situation, as taking it as even an approximation suggests things like your upthread misapprehension that it would be germane to a search of data on devices rather than a search of vehicles for unauthorized immigrants.
Look, I agree with what the ACLU is seeking to acheive with it's hyperbolic portrayal and even think that most uses that the ACLU makes of that portrayal are warranted for that purpose (and I think both that 100 air miles is too great a distance and the failure of Congress to set explicit boundaries makes the statute unreasonable.) But it's not even remotely a good approximation of the actual situation, except perhaps in the narrow context of discussion narrowly focussed on immigration enforcement.
This reminds me of Sowell's distinction between 'Type I' and 'Type II' discrimination: when all other information is forbidden from you, you'll end up using the only information you have as your heuristic, however noisy and biased that information might be compared to a more comprehensive source. This leads to incidental systemic discrimination.
That said, if 'suspicionless' is tied to concrete external evidence rather than mere profiling, this should be a good move.
If 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country (Yians), it seems like a pointless charade of political correctness to check Xians and Yians with equal frequency.
I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
Much like the no fly list which is a huge violation of due process.
Okay, we are talking about an extra 5 minutes of scrutiny, not cruel and unusual punishment. I don't think it's really that "horrible" to make people from countries with bad track records jump through some extra hoops.
To use a real example... it would be like me doing extra background checks on Chinese people applying to my company vs. Norwegian people. Not all Chinese people are spies, of course, but I've never heard of Norwegian moles infiltrating US companies and lifting IP back to the motherland being a rampant problem.
5 minutes if you decide to go along and reveal your entire digital life to the TSA.
Furthermore, CBP and ICE both claimed their authority to search electronic devices at the border extended to US citizens, so much of the profiling was not just of people from certain countries, but from people whose ancestry was from certain countries.
Lastly, I can't and won't try to convince you that it's wrong to subject people of various backgrounds to different, worse treatment, whether it's "cruel and unusual" or unfair, or invasive, or even simply inconvenient. It sounds like you aren't usually subject to such treatment or else you would probably have a different outlook on it. I recommend talking or listening to some people who do, and what their experiences are like.
the parent's assumption is "if you have any empathy for X people". from deir yassin to modern day. That assumption does not hold.
What doesn't improve security is just random screening where you're frisking 4-year olds and senior citizens and letting the adult males walk on by.
It reminds me of the N-armed bandit problem: use random searches some small percentage of the time, and use a distribution based on prior samples to identify subsequent searches. (It's not exactly the same, but the same technique applies.)
The way I typically understand profiling is that it's done to anyone who has features (skin tone, facial hair, clothes, etc) similar to Xians regardless of those people's actual origin.
And since it's trivial to change your appearance from Xian to whatever-ian it seems pretty useless to profile in that way. Also, really annoying and alienating for those who happen to look like Xian.
Sorry, I don't buy this at all. It is not "trivial" to change your appearance to look like a totally different ethnic group. You seem to have a pretty fantastical idea about the state of today's plastic surgery technology. You might try to hide by shaving and wearing different clothes, but you can't hide what your face looks like or what you skin tone is.
Why is airplane security different than other contexts?
> 100% of airplane terrorist attacks are carried out by people of X country (Xians), and 0% of airplane terrorist attacks are carried out by people from Y country
That's not the real world. There have been white terrorists, christian terrorists, etc. There have been muslim terrorists from most countries. Sometimes they don't look culturally muslim at a glance - maybe we should bring back Fumi-e?
https://en.wikipedia.org/wiki/Fumi-e
> I say profile the heck out of Xians. Stop and frisk 100% of Xians and 0% of Yians.
As an islamic terrorist, you just gave me a fantastic idea about how to beat your security. I won't go into detail, don't want to make it too easy in case some other terror group also figures out how to look like a WASP.
Because hundreds of lives are at stake, unlike (most) other contexts like screening college applications or work visa applications.
> That's not the real world. There have been white terrorists, christian terrorists, etc.
Are you saying terrorists happen at equal frequencies across all demographics? There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.
Why would you ever stop and frisk a family? Has a terrorist attack ever been carried out by a couple with children in the history of the world? Or even just gender profiling - how many terrorist attacks are carried out by women vs. men? Men should be scrutinized much more frequently than women; it's simple statistics.
Depends on how you define "children". E.g. see https://www.vanguardngr.com/2019/07/terror-attacks-the-inhum... but we're talking 15-year-olds, not 5-year-olds here (and note: 75% girls).
There is definitely an instance of a pregnant white woman trying to bring a bomb onto a plane (albeit unwittingly); see https://en.wikipedia.org/wiki/Hindawi_affair
You are, of course, correct that the frequencies for the various things here are not uniform.
In the USA??? I think the opposite is true. How many terrorist attacks have you had on US soil this year, and how many of the perpetrators identified as Christian vs Muslim?
Are you aware that the person I replied to described a scenario where 100% of attacks came from one group, and 0% from the rest? He was just as wrong as the straw man of me that you constructed.
> There have been Christian terrorists, yes, but those strike me as exceedingly rare compared to Muslim terrorists, for example.
I bet I know why it strikes you that way. And it's not because of actual real-world statistics based on what's actually happening in America. Check the numbers on terror attacks in the US- you might be surprised at the Muslim / Christian breakdown.
> Has a terrorist attack ever been carried out by a couple with children in the history of the world?
Yes, they have. And if we start waving couples with children through the security line, then yes, we will see it much more.
> how many terrorist attacks are carried out by women vs. men?
Yes. And if that's how we decide to bias our security, then we'll see a lot more women terrorists.
There are a lot of things that terrorists could do, but don't, in spite of lots of discourse like yours suggesting it would be effective for them. Bruce Schneier held contests for such suggestions, in order to highlight security theater, but also serving to point out that it's not remotely practical to guard against all reasonable threats. Since we're limiting the threats guarded against anyway, it might be better to guard specifically against those that have been experienced, rather than strip-searching grandma ( https://nypost.com/2019/06/06/tsa-humiliated-grandma-with-st... ) out of a pretense that it could be anyone... anyone at all.
Presumably because the margin of safety for optimal aircraft operation is a lot thinner, and there's a high likelihood that a catastrophic failure results in everyone on board (usually several hundred people) dying.
In comparison, a regular train derailing (e.g. via a bomb, or whatever) isn't going to be as disastrous.
Edit: why the downvotes?
https://www.schneier.com/blog/archives/2012/05/the_trouble_w...
And if you are from a country that has never had an airplane terrorist, like North Korea, why should you be screened? Maybe you should be profiled for other things, but not terrorism.
In your case, first of all, it's not 100%. Suppose 90% of attacks are by Xians and 10% are Yians.
Profiling Xians over Yians might mean that you catch 90% of attacks. Maybe 95% if you search some Yians.
On the other hand, learning to properly identify threats, independent of Xian vs. Yian, might allow you to catch 99.9% of attacks.
> As part of the relief sought, Plaintiffs seek expungement of all information gathered from, or copies made of, the contents of Plaintiffs’ electronic devices including social media information and device passwords. [...] Although this is not a criminal case, considering the remedy for the unconstitutional search in the criminal context is illustrative of the extraordinary nature of the remedy sought here. Even where law enforcement officers have conducted a search in violation of the Constitution, the “fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment.” [...] even where criminal proceedings followed a border search that exceeded the bounds of the Fourth Amendment and the fruits of same were suppressed, expungement of the border agents’ files would not necessarily follow. Nor should it where other deterrents to border agents’ unconstitutional searches remain in place. [...] In light of this other relief, including declaratory relief, the Court DENIES the request for expungement of information
https://www.aclu.org/sites/all/libraries/pdf.js/web/viewer.h...
https://www.senate.gov/civics/constitution_item/constitution...
'People' have rights:
> the right of the people peaceably to assemble
> the right of the people to keep and bear Arms,
> the right of the people to be secure in their persons, houses, papers, and effects
> other [right]s retained by the people.
> [powers] are reserved to the States respectively, or to the people.
'People' usually means 'voters':
> chosen every second Year by the People of the several States
> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,
> the people fill the vacancies by election as the legislature may direct.
Government is made of 'citizens':
> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,
[etc for Senator, President]
and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:
> judicial Power shall extend to all Cases ... between Citizens and ...
> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.
> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
and makes the most interesting statement about the rights of a 'person'
> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.
You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).
IMO the BOR should apply to all humans, anywhere in the universe, when subject to US Government jurisdiction. Let's hope courts agree.
Hm. Page 27: https://fas.org/sgp/crs/misc/R44618.pdf
I'm ignoring FFL's because it's not directly relevant.
Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.
Weird quirk with the huntling license, so that second example is a state law?
Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.
If your friend was visiting from a European country that didn't require a visa to visit the US (most of them) you'd be in the clear.
Some discussion for non-immigrant visas about halfway down this article: https://reason.com/2019/01/12/illegal-aliens-guns-and-strict...
It is true in practice.
One example: the children of illegal immigrants are legally entitled to public education, even though they aren't citizens.
1) People who aren’t citizens are still entitled to public education. Many green card holders go to US public schools, for instance
2) Anyone born on US soil is a US citizen regardless of their parents immigration status
Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.
You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.
Mostly.
This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.
are largely seen out as soon as their sentence is served
What do you mean by "seen out", exactly?
Committing a crime of moral turpitude as a non-immigrant (and even some green card holders) makes you eligible for deportation. [1]
[1] https://www.alllaw.com/articles/nolo/us-immigration/legal-re...
You can't legally work in any job as an illegal immigrant - it's a Federal law: https://www.law.cornell.edu/uscode/text/8/1324a
https://www.latimes.com/local/lanow/la-me-ln-court-guns-immi...
As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.
If you use javascriptlets like:
This actually works in chrome, to speed up the audio playback, if you're short on time.A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.
https://www.etymonline.com/word/regulate
The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.
https://www.constitution.org/cons/wellregu.htm
> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
> 1714: "The practice of all well-regulated courts of justice in the world."
> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.
Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):
> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...
The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:
> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.
> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”
> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]
https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...
The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”
The word "regulation" is perfectly compatible with the "well-regulated" idiom.
Regulate is a form that appeared in Middle English that means “to control by rules”.
I’m all for guns and appreciating the inscrutable nature of the 2nd amendment. But words mean things.
There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.
To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.
There’s a very real possibility that a teenager with an AR15 is literally part of a well-regulated military group protecting the county.
[1] https://www.law.cornell.edu/uscode/text/10/246
[0] https://law.justia.com/constitution/us/article-1/58-the-mili...
Wikipedia has an excellent reference on this. See the "Experience in America prior to the U.S. Constitution" section: https://en.m.wikipedia.org/wiki/Second_Amendment_to_the_Unit...
Also, what's the use of a militia being recognized and, wow, regulated by the very government they are designed to oppose if push comes to shove.
> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...
> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...
> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)
> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”
AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.
While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.
There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.
They even had 2 canine units circle my car and jump in and out of it at least 10 times each.
Talk about a heavy handed approach.
As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.
And I have Canadian citizenship.
Signed and donated. It happens to me every, single, fucking, time, losing 1 hour every trip back home.
Since August 15, US border agents in Canada are now able to prevent you from withdrawing if they detain you. (Bill C-23)
> If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all
[0] https://news.ycombinator.com/item?id=21518813
Their rights are violated by courts?
It's pretty easy to make the case that nobody knows what the U.S. Constitution actually means.
Court upheld the right of an illegal alien to own a firearm.
> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.
What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.
It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.
To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).
Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.
In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.
CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.
Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.
Child porn is prohibited to be imported in any form, including digital. Customs isn’t about just physical objects.
The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.
https://en.wikipedia.org/wiki/Bernstein_v._United_States
[1] https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalyp...
[EDIT:] great link, thanks!
https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_...
https://www.forbes.com/sites/jennifergranick/2014/03/20/obam...
https://www.theguardian.com/commentisfree/2013/oct/10/cpi-re...
https://www.motherjones.com/politics/2012/06/obamas-whistleb...
https://www.businessinsider.com/james-risen-case-obama-journ...
https://www.salon.com/2012/03/14/obamas_personal_role_in_a_j...
On th other hand, we should not think of 1A rights as rights that only specialists or professionals need.
(Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)
EDIT: Note, for example, that the Federalist Papers that drove much of the discussion behind the policies in the Constitution were self-printed by Franklin, et al. Newspapers at that time were highly political and opinionated, like Fox News today, and did very little actual reporting of news. Journalists and "the press" didn't get conflated until much later.
But they have a very special position and role that makes them specially vulnerable when dealing with powerful institutions.
It was not, in any way, intended to refer to "journalists", a group whose only defining characteristic appears to be employment by a certain group of private companies.
Don't different countries have different views of rights? What happens when those rights are at odds? For example, Turkish people can't speak ill against their governments [0]. This contrasts with countries that have fewer restrictions on speech, like America.
So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
Or is "protections" here more about procedural rights?
[0]: https://en.m.wikipedia.org/wiki/Article_301_(Turkish_Penal_C...
And so they would apply their views in their own jurisdiction.
> What happens when those rights are at odds?
Whichever jurisdiction you stand in correspond to the rights that prevail for you.
The way I see it, a country says what the rights of people/humans are, and they defend those beliefs in their own jurisdiction, where they have the absolute power to.
> So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?
I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.
Ah I had not thought of it in this way but that makes sense. I can't disagree that all people in a single jurisdiction should be afforded the same procedural rights (I couch it in procedural rights because substantive rights are stripped from felons for example in many jurisdictions).
The plaintiffs are 10 U.S. citizens and one lawful permanent resident.
Others are not, like the Tenth Amendment.
The 4th Amendment is probably closer to the first category rather than the second.
International travelers entering the US (who were subjected to the policy) are not all foreigners.
> part of "the people"?
Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)
So I work for a company that deals with medical data, if I violate HIPAA, I don't get to just keep doing it until a federal court says stop and then walk away as if nothing happened. I'm personally held responsible for those violations. Not just my company, me.
Why aren't each of these agents that obviously and egregiously violated the constitution subject to imprisonment or fines for each violation?
Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.
The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?
https://dictionary.law.com/Default.aspx?selected=2087
Honest question: can illegally obtained evidence be used to get a search warrant?
In the specific case you're talking about, always.
Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).
I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.
However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.
For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.
This seems like a rather vague claim
Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.
It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.
It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.
But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.
* https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...
> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.
In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.
And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.
> they need to show a good-faith belief...
That's not how being a plaintiff works, which is what is frustrating about this type of situation.
They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.
This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.
For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.
https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...
You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.
https://en.m.wikipedia.org/wiki/Parallel_construction
Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.
You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.
This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.
> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]
No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.
>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?
Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.
In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.
>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?
Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.
So, does this not apply to people flying domestically?
They'll do the same thing, and someone will say "But what about Alasaad v. McAleenan?" and in the small windowless holding room the agent will say "What about it? You want to leave, unlock your phone."
https://dictionary.law.com/Default.aspx?selected=2087
99.9% of the time, the most negative outcome of this kind of interaction will be losing my stuff, being arrested and held for anywhere up to 24 hours, or being denied entry. For most people, these are a compelling enough reasons to comply with a power-tripping border agent. Despite this ruling, your recourse in such a situation will remain quite limited.
Also, it's not exactly hard for a lawyer to argue that you were coerced into consenting to a search in your hypothetical example. Since the people crossing the border are mostly non-criminals if CPB does use those tactics routinely it will not take long at all for a suitably politically sympathetic victim to come along and precedent to be established saying that is also not ok.
I highly doubt they are getting a lot of convictions from illegal searches of devices. The overwhelming majority of convictions they get are from people physically smuggling drugs and weapons and apples across borders. They don't need to unlock your phone to catch you with any of these things. They already have the right to tear apart your car if they think you have drugs hidden in it.
It's a power play, not an actually useful LE tool. The overwhelming majority of the things that you may have on your phone that are going to get you in trouble with border control are not going to put you in jail. What they will do, is deny you entry, and possibly ban you for 5-10 years.
Since entry for non-citzens is a courtesy, you have zero redress in that case. You're never going to get your day in court, since you're not charged with a crime, and you will not be able to contest that the search was illegal.
The only way this ruling would result in any change, is if CBP voluntarily follows it.
They can still do parallel construction, and can still cause you harm just by detaining you, and they can use your behavior in response to abuse as probable cause to justify further abuse.
If you were illegally searched, then law enforcement subsequently does parallel construction, defense counsel can easily and persuasively argue that the subsequent evidence is "fruit of the poisoned tree" and would not have occurred without the illegal search. The judge can then throw out all evidence from the parallel construction.
The only way parallel construction works is if defense counsel and the judge don't know that the illegal search ever happened at all - which is very unlikely in the case of an illegal border search.
So yes they can just send you back, it is in their capabilities and there's nothing the foreigner can do to counter that decision.
https://en.wikipedia.org/wiki/Carpenter_v._United_States#Sub...
You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.
The US was founded on habeas corpus, and it doesn't matter what laws have been written since, or what national threats have been used as an excuse to undermine our inalienable rights. Your duty is to the future people of the US so that their rights to life, liberty and the pursuit of happiness aren't infringed.
My feeling is that this house of cards of government officials skirting the law and pleading ignorance is going to come crashing down in the near future. They know that they are breaking the law. They're just assuming that you will be afraid and let them.
I had hoped that we were past all this and the 21st century would to be free of injustice, but unfortunately we're all going to have to fight just like our ancestors did. But I think that better times really are just around the corner, as long as we stay informed and unified.
Related: congresswoman Nanette Barragan questions Kirstjen Nielsen on asylum seekers being turned away at US border crossings:
https://www.youtube.com/watch?v=ZQ-cURrFLVk
Asylum seekers are granted refugee status by the United Nations if they meet two broad requirements. The US accepts a limited number each year (notably more than any other country since WW2, however).
I'm not a lawyer, but reading through this:
https://en.wikipedia.org/wiki/Asylum_in_the_United_States
Something stood out:
An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge.
So I think that the "Nanette Barragan questions Kirstjen Nielsen" video I linked shows that the border crossing agent committed a crime when she turned away people seeking asylum. She should have either: a) granted their asylum or b) admitted them to go before an immigration judge.
From there, the border crossing agent should be tried in court for her actions. In which case, she can either say that she is guilty and take the penalty, or that she was following orders and then the next person up in rank should go through the process until it reaches Department of Homeland Security Secretary Kirstjen Nielsen. In which case, she can accept responsibility, or claim that she was following orders from the president.
It looks like Kirstjen Nielsen resigned on April 10, 2019, a month after the March 2 video:
https://www.cbsnews.com/news/kirstjen-nielsen-resigning-dhs-...
We're seeing this a lot lately, where high-ranking officials are skirting the law, then resigning to shield the president. That's not how it should work in America.
I say all of this because I imagine if I was a border crossing agent, and I denied asylum to someone outright, then found out later they died because of my actions, I'd likely get PTSD and never recover. At the very least, I don't know how I'd be able to sleep at night.
Which is why I think I'm right as far as the spirit of the law, even if the letter of the law doesn't match up with what I'm saying.
This itself is actually the fallacy. Take a look at this:
https://www.npr.org/sections/thetwo-way/2017/08/01/540903038...
> Watson was correct all along: He was a U.S. citizen. After he was released, he filed a complaint. Last year, a district judge in New York awarded him $82,500 in damages, citing "regrettable failures of the government."
> On Monday, an appeals court ruled that Watson, now 32, is not eligible for any of that money — because while his case is "disturbing," the statute of limitations actually expired while he was still in ICE custody without a lawyer.
"Flessner, Watson's lawyer, says the ruling "turns false imprisonment statute of limitation claims kind of on their head."
It means a person in custody for an extended period of time would have to file a false-imprisonment claim while detained, "before it's been determined that they've been falsely imprisoned," he said. "I mean, this is not only applicable to immigration cases ... there's lots of citizens that are falsely or wrongly imprisoned."
A few thoughts comes to mind:
* Corrupt public officials are hacking our legal system through thin cracks like differences between citizen and non-citizen rights and the statute of limitations to commit injustice.
* This case needs to be appealed and go all the way to the Supreme Court, because it's pretty self-evidently an infringement of Davino Watson's rights.
* The Supreme Court as it stands now would likely make an unjust decision in that case, because it has been packed with judges that lean more towards libertarianism/corporatism than justice. Mitch McConnell blocked Obama's nomination of Merrick Garland, which opened the door to Neil Gorsuch and Brett Kavanaugh: https://www.vanityfair.com/news/2019/05/mitch-mcconnell-supr...
Jesus Christ.
Third-party doctrine lets them silently access your emails and IMs and texts at rest, and Section 702 as well as creative definitions of "access" let them sniff them all in transit. Privacy from the fed snoops is 100% an illusion; the entire population is under continuous realtime monitoring.
This border search thing is an important but ultimately minor victory; total surveillance is the name of the game in the United States now, and likely will remain so until the country no longer exists.
Strong encryption is the only defense we have against mass surveillance, but sadly most people don't care enough about their own privacy (much less that of others - the classic "What do you have to hide?") to demand it in communications products and services, so the majority of personal networked communications happens in ways that are extremely simple for the corrupt federal government to collect, analyze, and permanently store.
On the whole, governments have run a lot more prisons, forced labor camps, and concentration camps than private corporations have.
I am not worried about the collection of the data. I am worried about what it will be used for in ten, fifteen, twenty years’ time.
(The following (what I say) does not mean to imply that I don't agree with the ruling:)
I don't get why this is a factor at all or even relevant. In particular the 'despite her informing the officer'. Why would the officer be in a position to determine a) If the plaintiff is even an attorney to begin with b) If the plaintiff was asserting that as some kind of defacto 'diplomatic immunity' (to only make a comparison) in order to prevent the phone from being searched because it might in fact contain contraband? Very convenient, right? Why in particular would the lawyers rights (because they are an attorney) be greater than any ordinary individual? Further why would it matter if an officer saw the attorney client information to begin with? The assumption is that anything they (the officer) sees would have to be kept private no matter what it was. Lastly could someone (a business person) then assert that there was material non public information on the phone and that as a reason to not search it? The point is if they did see it the officer could (in theory) trade on that information. Where does this stop?
Think I'll give it a miss for now though. The entire border crew seems like a law onto themselves.
e.g. last time - got hassled about being a dual citizen (neither US). But then while standing in a queue for a metal detector (as per agent instructions) another agent pulls me out of the queue and says I don't need to do this go around there. Rest of epic long queue proceeds towards detector/search as if nothing happened...just me.
Very much doubt there is any rhyme or reason behind what's happening at the borders beyond massive power trips.
It's definitely a good ruling to have on the books but it could very well just end up being a checkbox matter to have a pretense of "suspicion" (ie "this person appeared nervous").
Depending on the jurisdiction of this district court the DHS might even decide that it doesn't apply outside that jurisdiction until a higher court rules on it.
But yeah, all hangs on what is "suspicion" (or what passes for it in practice), compared to say a targeted op or warrant provided by a court (even if its one of those secret courts like FISA).
Obviously it's not the final word unless it comes from the Supreme Court.
That's why supreme court rulings are such a big deal. They are the ultimate 'root' authority.
If you find this issue interesting, you may find reading at least part of it rewarding. The ACLU has a PDF embedded on this page: https://www.aclu.org/legal-document/alasaad-v-mcaleenan-opin...
Sections B-E (pages 14-47) are the most useful.
https://news.ycombinator.com/newsguidelines.html
But at the same time, if it were as obvious as just quoting the constituion, it wouldn't have made it to the Supreme Court in the first place. The SC decides cases that are difficult, not cases that are easy.
Again, I believe this is the right decision, but it was no layup.
This is what the Yahoo attorneys were told in one of the few partially declassified FISA court hearings by the judge when they tried to push back on a sweeping warrant, which I believe involved full emails/information for not only a group of individuals but every person they talked to 2 hops, which quickly turns into thousands of people and companies.
Perhaps you would like to advance an actual argument insofar as abusing access to portable computing devices to virtually riffle through an individuals entire life without benefit of court or even articulable suspicion? This is an intrusion into an individuals privacy worse than anything the framers could have imagined justified only a by a right to search that exists to discover contraband THINGS not contraband thoughts.
Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.
It's not at all obvious. For example: it's "obvious" that the constitution applies to the United States. Before you pass through the border, you are in a place that is NOT the United States. It's definitely not obvious that the constitution applies to places outside the US.
> insofar as abusing access to portable computing devices
> to virtually riffle through an individuals entire life
> without benefit of court or even articulable suspicion?
You seem to think that I support a side I don't. Cases like this don't survive motions for summary judgement if the one side is completely implausible. This case either survived a motion for summary judgement, or the "obvious" side didn't make such a motion.
So if you think it is completely obvious, you should take it up with either the judge that denied the motion, or the lawyer who neglected to bring it.
> Lest we forgot Texas had to have the supreme court tell them that they couldn't outlaw gay sex not that long ago.
Any law that forbid it was unjust, and it should have been fixed long, long before Obergefell. But just because a law is unjust, doesn't mean that it is unconstitutional on its face, (cf, civil asset forfeiture--manifestly unjust and currently legal in many circumstances) This is a mistake many court-watchers make.
It is a very safe bet that a 1950's court would have gone the other way on Obergefell, so on a plain language standard kind of fails. At some point, society gained a better understanding of what justice is and is not--and that is a great thing. But if the plain language didn't change, then the appeal to plain language isn't what gets us there. Rather, our understanding of justice did.
It's reasonable to search for harmful or illegal materials entering the country. You have a compelling interest in the safety of the citizens and this is likely your one chance to reasonably interdict them before they can cause harm to the citizenry.
No such special circumstance exist for information. Information flows freely and securely over most of the world and interdicting it at the border is laughable. Once you leave behind existing powers and arguments for same you are left making an argument for new powers undreamt of by the founders.
You can argue for example that being able to access all the private words and documents of travelers allows you to make better decisions as far as whom and what ought to be interdicted or examined. This might even be a compelling argument for you. It is however not a continuation of centuries of practice but rather entirely new power that ought to be enumerated in new laws if it is to be granted.
If we insist that we react to the changing landscape provided by technology solely by interpreting what 18th century individuals wrote we ought to interpret very conservatively insofar as grants of government power. If such new powers are needed let the peoples representatives write the required laws.